HHS Instruction 1104-1: Delegated Examining Operations

Material Transmitted:

Department of Health and Human Services (HHS) Instruction 1104-1, Delegated Examining Operations, dated 12/13/2024

Material Superseded:

HHS Instruction 1104-1, Delegated Examining Operations, dated 08/03/2020

HHS Instruction 610-3, Establishing Appointment Effective Dates, dated 10/21/2011

Background:

The Office of Personnel Management (OPM) delegated to HHS, via Interagency Delegated Examining Agreement (HHS-1) the authority to examine applicants for competitive service positions for all occupational series and grade levels nationwide. This policy clarifies the recruitment, appointment, and assessment procedures for competitive examining, in accordance with Executive Order 13932, OPM regulations, HHS-1, the OPM Delegated Operations Handbook, and OPM’s Guide to Processing Personnel Actions.

This issuance is effective immediately and must be carried out by the HHS OpDiv/StaffDiv Human Resources (HR) Centers in accordance with applicable laws, regulations, collective bargaining agreements, and Departmental policy.

/s/

Jeffrey Anoka

Deputy Assistant Secretary for Human Resources

Chief Human Capital Officer (Acting)

1104-1-00 SECTIONS

1104-1-10 Purpose

1104-1-20 Coverage and Exclusions

1104-1-30 References

1104-1-40 Definitions

1104-1-50 Responsibilities

1104-1-60 Recruitment and Appointment

1104-1-70 Adverse Actions, Movements and Appeals

1104-1-80 Documentation and Accountability

1104-1-10 PURPOSE

This Instruction establishes Delegated Examining (DE) policy and procedural guidance for the Department of Health and Human Services (Department or HHS) Human Resources Centers and designated staff assigned to conduct DE operations, as authorized by OPM/HHS Interagency Delegated Examining Agreement (HHS-1).

This policy is used in conjunction with the OPM’s Delegated Examining Operations Handbook (DEOH) and the references listed in this Instruction.

When provisions of this policy differ from changes in applicable law or regulation, the changes in law or regulation apply.

1104-1-20 COVERAGE AND EXCLUSIONS

This Instruction covers delegated examining for competitive service positions, including the direct hire authority. It does not apply to merit promotion procedures, the excepted service, or the Senior Executive Service. (5 U.S.C. §1104)
The following HHS Operating and Staff Division (OpDiv and StaffDiv) HR Centers are Delegated Examining Units (DEU) and authorized to conduct the delegated examining activities under HHS-1 and this Instruction:
Administration for Strategic Preparedness and Response (ASPR)
Centers for Disease Control and Prevention (CDC)
Centers for Medicare and Medicaid Services (CMS)
Food and Drug Administration (FDA)
Health Resources and Services Administration (HRSA)
Indian Health Service, Navajo Region (IHS)
Indian Health Service, North Plains Region (IHS)
Indian Health Service, Rockville Headquarters (IHS)
Indian Health Service, Southeast Region (IHS)
Indian Health Service, Southwest Region (IHS)
Indian Health Service Western Region Human Resources Center (IHS)
National Institutes of Health (NIH)
Office of Inspector General (OIG)
Office of Medicare Hearings and Appeals (OMHA)
Staffing Recruitment Operations Center (SROC)
The Department will follow all requirements of 5 USC Chapter 71 involving bargaining conditions of employment for bargaining unit employees. To the extent that provisions of this policy are in specific conflict with a Collective Bargaining Agreement (CBA), the provisions of the CBA govern for bargaining unit positions only.

1104-1-30 REFERENCES

1104-1-40 DEFINITIONS

ACWA, or Administrative Careers With America.ACWA was the result of a 1979 class action lawsuit concerning an exam OPM then used to evaluate candidates for certain positions at the GS-5 and GS-7 grade levels across government. As a result, OPM was required to develop assessment tools for the positions covered. As of 2007, federal agencies are no longer required to use the ACWA assessment tools and may use any other validated (i.e., job-related) assessment tool(s) when filling competitive service positions. Such assessment tools must comply with the requirements specified in this Instruction, Section 1104-1-60, Assessment.
Category Rating. An evaluation method of applicants who meet eligibility and minimum qualification requirements for the position. Candidates’ experience, education, and training are assessed and then they are placed into pre-defined “quality categories,” instead of being assigned individual numerical ratings. Category rating is synonymous with alternative rating described in 5 U.S.C. §3319.
Delegated Examining. OPM may delegate authority to an executive agency to conduct delegated examining, i.e., examine applicants for competitive service positions that are open to all U.S. citizens including current federal employees. Delegated examining is synonymous with competitive examining. (5 U.S.C. §1104) Within HHS, the OpDiv/StaffDiv HR Centers listed in Section 1104-1-20(B) are Delegated Examining Units authorized to conduct delegated examining for their serviced division. There are two types of delegated examining processes:
1. Case examining is used for targeted recruitment to immediately fill a vacancy, then the case file is closed when the selection process is complete.
2. Competitive Inventory or Standing Register is a list of qualified applicants ready to be certified for current and future vacancies. An inventory can be used for positions that frequently need to be filled. To keep the inventory filled, a JOA can be opened as needed, or an open-continuous JOA is used. For information on establishing an inventory/register, see the DEOH Appendix J.
Direct Hire Authority. With OPM approval, a Direct Hire Authority (DHA) permits an agency who has delegated examining authority to hire, after public notice, any qualified applicant to fill competitive service positions at GS-15 and below without having to rate applicants or apply veterans’ preference (5 CFR 337, Subpart B).
Pass-overs and Objections. For full definitions, see OPM’s DEOH, Chapter 6.
1. Pass-over. An agency request to “pass-over” a preference eligible to select a non-preference eligible.
2. Objection. An agency request to remove a preference eligible from consideration from a certificate.
Preference Eligible. Individuals who receive preference in appointment over other applicants because of their military service or because they are a family member of a military service member. For full definition, see 5 U.S.C. §2108(3).
Public Notice. Agencies are required by law and regulation to notify OPM (i.e., post a job opportunity announcement (JOA) on USAJOBS) when accepting applications from outside the federal workforce for any competitive service position lasting more than 120 days and include specific information in the JOA (5 U.S.C. §§ 3327 and 3330, and 5 CFR §330.103). The information that must be covered in all competitive service JOAs is listed in 5 CFR §330.104 and OPM’s DEOH, Chapter 3.
Subject Matter Expert (SME). An individual who is an expert of the job to be filled. A SME is typically an incumbent in the same position or first level supervisor (but cannot be the selecting official or hiring manager to maintain objectivity in the hiring process) and has knowledge of the competencies needed to perform the position and is asked to assist HR in the assessment process, i.e., development of the job analysis, applicant assessment, and/or interviews.
Variation. OPM is authorized by 5 CFR §5.1 to approve a variation (an exception to regulation) to avoid unnecessary hardship to an employee (i.e., loss of employment, pay, grade, or significant service credit) when an agency makes a regulatory error during the competitive hiring process. OPM does not have the authority to make exceptions to law, Executive Order, or court decision. For additional guidance, see Erroneous Certification and Priority Consideration in this Instruction and OPM’s DEOH, Chapter 6.
Veteran. Defined under 5 U.S.C. §2108(1-2) and 5 CFR §211.102.

1104-1-50 RESPONSIBILITIES

HHS Assistant Secretary for Administration, Office of Human Resources (ASA/OHR):
1. Establishes Department-wide policy and guidance regarding delegated examining consistent with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
2. Serves as the liaison with OPM on delegating examining matters for the Department.
3. Submits to OPM any pass-over or objection requiring OPM approval.
4. Submits variation requests to OPM for approval.
5. Submits for OPM approval requests for final determination of the physical ability of a preference eligible to perform the duties of a position.
6. Submits for OPM approval requests for an HHS-wide or OpDiv/StaffDiv-specific DHA.
7. Periodically reviews OpDiv/StaffDiv delegated examining procedures, actions, and reports to assure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations; and
8. Takes corrective action, as required by OPM, as the result of the review of delegated examining activities within HHS (5 U.S.C. §1104).
OpDiv/StaffDiv Human Resource Centers (HR Centers):
1. Comply with this Instruction, any HHS and OPM policy and guidance, and all applicable federal laws and regulations.
2. Ensure that all human resources (HR) staff, including contractors, performing delegated examining activities have successfully completed the initial OPM delegated examining training and are currently certified to perform delegated examining.
3. Ensure that managers, supervisors, and personnel involved in the competitive hiring process are trained and informed of the merit systems principles and prohibited personnel practices.
4. Establish internal Standard Operating Procedures (SOPs) for delegated examining activities, including category rating procedures, consistent with applicable law, regulations, the DEOH, and this Instruction. The Indian Health Service shall include the requirement to give selection priority in accordance with 25 U.S.C. §5117 prior to applying veterans’ preference provisions.
5. Ensure that qualification determinations are in accordance with OPM’s Qualification Standards.
6. Appropriately apply and adjudicate veterans’ preference in accordance with 5 U.S.C. §§3309-3319, 5 CFR Part 211, the OPM DEOH, and this Instruction.
7. Audit every certificate of eligibles even when no selections are made and/or the certificate is cancelled.
8. The Human Resources Director (HRD) approves and/or submits to ASA/OHR at employmentpolicy@hhs.gov any request for OPM approval to object/pass-over any veteran with a 30% or more compensable service-connected disability. Pass-over and objection requests must contain the information listed in Section 1104-1-60.
9. Submit to ASA/OHR at employmentpolicy@hhs.gov a copy of the HRD approval for any objection/pass-over for preference eligibles with less than 30% compensable service-connected disability, or an applicant with derived preference, within 14 calendar days of HRD approval. Such approvals must contain the information listed in Section 1104-1-60.
10. The HRD approves and/or submits to ASA/OHR at employmentpolicy@hhs.gov any variation request for OPM approval, after attempts to regularize (i.e., correct) an erroneous appointment is unsuccessful. Variation requests must contain the information listed in Section 1104-1-60.
11. The HRD approves and/or submits to ASA/OHR at employmentpolicy@hhs.gov requests for OPM approval of an OpDiv/StaffDiv-specific DHA. DHA requests must contain the information listed in Section 1104-1-60.
12. Ensure the regulatory restrictions in 5 CFR 330, Subpart E, on movement after competitive appointment via DE case examining or DHA are followed.
13. Ensure selectees serve a probationary period in accordance with HHS Instruction 315-1, Probationary Periods.
14. Within five (5) business days of the addition, termination, or suspension of any DE office(s), notify ASA/OHR at employmentpolicy@hhs.gov so OPM can be notified (HHS-1).

1104-1-60 RECRUITMENT AND APPOINTMENT

OPM DE Certification. All individuals responsible for conducting DE activities (i.e. an employee or contractor who performs activities to fill competitive service positions via delegated examining including conducting job analysis; public notice; accepting and processing applications; candidate assessment and referral; adjudicating veterans’ preference; auditing certificates; delegated examining unit accountability responsibilities; and DE reporting requirements) are required to complete initial certification training and be currently certified to perform delegated examining. Individuals must successfully pass the OPM DE Certification Assessment. Certifications are valid for three (3) years. Recertification Assessments may be taken when DE certifications are within six (6) months of expiring. Individuals must be actively conducting delegated examining activities or be in a policy or oversight role to delegated examining to be eligible for recertification. Failure to maintain current DE certification can jeopardize an OpDiv/StaffDiv’s authority to conduct DE activities under HHS-1. For additional information, see OPM’s DEOH, Chapter 1.
Job Analysis (For additional information, see OPM’s DEOH, Chapter 2).
1. A job analysis identifies job-related competencies/knowledge, skills, and abilities (KSAs) and demonstrates a clear relationship between the tasks performed on the job and the competencies/KSAs required to successfully perform the tasks. The job analysis must be signed and dated by the selecting official and HR Specialist.
2. Job analyses for multi-grade level announcements: There should be an approved job analysis for each grade level that distinguishes the differences in job duties and job-related competencies between grade levels. In cases where a Statement of Difference(s) is used, a single job analysis may be used.
Assessment (Executive Order 13932, Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates, June 26 2020; 5 CFR Part 300, Subpart A; 29 CFR Part 1607, Uniform Guidelines on Employee Selection Procedures; and 5 CFR Part 300, Subpart A).
1. Executive Order 13932 requires agencies to minimize reliance upon education as a substitute for experience and use assessment tools other than self-reported occupational questionnaires. Specifically, OpDivs/StaffDivs must use skills and competency-based assessments and refrain from relying solely on a candidate’s self-assessment of their qualifications (e.g., occupational questionnaires). When a multi-hurdle assessment process is used to fill the position, applicants must clear additional assessment hurdles to be considered qualified in competitive examinations.
2. OpDivs/StaffDivs must utilize valid, competency-based assessment methods to evaluate applicants. Valid assessments measure job-related competencies and are based on reliable rating criteria that are fully documented by the job analysis, produce consistent rating results, and show a direct link to the competencies required for successful performance.
3. Assessments must be consistent with 5 CFR 300.103; the DEOH Chapter 2, Section C; and 29 CFR Part 1607. Assessment tools should be developed and validated by in-house or third-party assessment measurement experts (e.g., Industrial Organizational (I/O) Psychologists) prior to implementation to ensure they are valid, fair, and reliable, meet regulatory requirements and are legally supportable. OpDiv/StaffDivs are responsible for developing and maintaining documentation to support their assessment methods.
4. For additional information, see the OPM Qualifications, Assessment, and Hiring Policy FAQs (opm.gov)); Designing an Assessment Strategy (opm.gov); and HHS OHR Guidance, Hiring Assessment Strategies.
5. Administrative Careers With America (ACWA): Agencies are not required to use OPM’s ACWA assessment tools for ACWA designated positions; however, they are available to fill positions covered by ACWA. See the DEOH, Chapter 2, for instructions and DEOH Appendix F, for the list of ACWA positions.
Public Notice Requirements. OpDivs/StaffDivs are required by law and regulation to notify OPM (i.e., post a job opportunity announcement (JOA) on USAJOBS) when accepting applications from outside the federal workforce for competitive service positions lasting more than 120 days and include specific information in the JOA (5 U.S.C. §§ 3327 and 3330, and 5 CFR §330.103). The information that must be covered in all competitive service JOAs is listed in 5 CFR §330.104 and OPM’s DEOH, Chapter 3.
Priority Placement Programs. CTAP, ICTAP, and the HHS RPL must be cleared in accordance with HHS Instruction 330-2, Priority Placement Programs.
1. Career Transition Assistance Plan (CTAP) and Interagency Career Transition Assistance Plan (ICTAP). OpDivs/StaffDivs must give selection priority to qualified CTAP and ICTAP candidates when filling a permanent or time-limited competitive service positions lasting more than 120 days (including extensions) unless the action is one of the exceptions listed in HHS Instruction 330-2, Priority Placement Programs, and 5 CFR 330, Subparts F and G. HR Centers must retain written documentation in the recruitment case file to demonstrate CTAP and ICTAP clearance.
2. Reemployment Priority List (RPL). OpDivs/StaffDivs must give selection priority to qualified HHS RPL candidates for most permanent or time-limited competitive service positions before hiring outside HHS’ permanent workforce unless the action is one of the exceptions listed in HHS Instruction 330-2, Priority Placement Programs, and 5 CFR 330, Subpart B. HR Centers must retain written documentation in the recruitment case file to demonstrate clearance of HHS’ RPL.
Limiting the Number of Applicants. OpDivs/StaffDivs may use the following options to manage application volume for positions that attract a large number of applicants for all delegated examining recruitment, including DHA based on a critical hiring need. When one or more of the flexibilities below are used, they must be stated in the JOA and the justification must be clearly documented in the recruitment case file.
1. Limiting the number of days a JOA is open: OpDivs/StaffDivs have the discretion to determine the length of time that a JOA is open. OPM recommends an open period of at least five (5) calendar days; however, justifications for announcements open less than five (5) calendar days must be documented in the recruitment case file, in accordance with HHS-1 and OPM’s DEOH, Chapter 3. Justifications to limit the open period are based on the number, type(s), grade levels, and geographic locations of the positions being filled; labor market conditions; and recent experience (within 1 year) filling similar positions.
2. Limiting the number of applications received: OpDivs/StaffDivs have the discretion to set limits on the number of applications that they will consider when filling a position (e.g., the first 100 applications received). When using such limits, OpDivs/StaffDivs must accept any applications received up until 11:59 p.m. on the day the limit is reached to accommodate applicants in non-Eastern time zones.
3. Establishing cut-off date(s): This option is reserved for JOAs with an extended open period (i.e., 6 to 9 months) and multiple vacancies, or for open-continuous JOAs for hard to fill positions. Under this option, a certificate may be issued every 30 days (i.e., cut-off dates). HR Centers must 1) evaluate ad refer to the hiring official all qualified applications received by the cut-off date; 2) consider any application received from a 10-point preference eligible who applies after the cut-off date but before the certificate is issued; and 3) consider application received after the cut-off date only when the initial group of applicants is exhausted and/or there are additional vacancies to fill.
  Use of a cut-off date must be clearly explained in the JOA, as well as the process that will take place as a result of the cut-off date. The JOA can identify multiple cut-offs, which enables HR Centers to issue a certificate as vacancies arise or as qualified applicants are identified without having to wait for the JOA closing date. For additional information, see OPM DEOH, Chapter 3.
Geographic Area of Consideration. Applicants who are qualified must be considered for employment regardless of their place of residence. Residency is a non-merit factor in delegated examining and is prohibited as a requirement by 5 CFR 300.103(c), i.e., applicants generally cannot be required to reside in a specific location to be eligible for consideration. For additional information, see the DEOH, Chapter 6.
Applicant Notification. Applicants who apply through USAJOBS must receive notification through USAJOBS at each of the following four points during the application process: 1) application received; 2) application assessed for qualifications; 3) applicant referred or not referred to selecting official; and 4) applicant selected or not selected for the job (DEOH, Chapter 4).
Readvertisement of Vacancy Announcements. When announcements are re-advertised within 60 days of the closing date of the original announcement, all applicants who applied to the original announcement must be notified of the readvertisement, regardless of whether there are significant changes to the announcement. (Applicants do not need to be notified for vacancies re-advertised after the 60-day time frame.)
Acceptance of Applications.
1. Applications for competitive service positions are accepted according to the application procedures defined in the public notice (5 U.S.C. §§3327 and 3330, 5 CFR Part 330, Subpart A; and the DEOH, Chapter 4).
2. Applicants who are a 10-point preference eligible may apply at any time for any position for which: a) a register is about to be established; b) a non-temporary appointment has been made in the preceding three years; or c) a list of eligibles currently exists but is closed to new applicants (5 CFR Part 332). Such applications must be accepted and processed up until the time a certificate is issued. Once a certificate is issued, it cannot be amended unless the hiring official requests additional applications. Amended certificates, based on the hiring official’s request, will result in referral of all applications received on the same date of the request and earlier.
3. An applicant who is a preference eligible is: a) entitled to be entered on an existing competitor inventory if he or she applies within 90 days after furlough or separation without delinquency or misconduct from a career or career-conditional appointment, provided he or she is otherwise qualified for the position; b) may enter an existing inventory if he or she has successfully appealed a furlough or discharge from a career or career-conditional appointment, and is otherwise qualified for the position; and c) entitled to be re-entered on each existing inventory (or its successor) on which he or she was previously listed, provided he or she applies within 90 days after resignation without delinquency or misconduct from a career or career-conditional appointment (5 CFR Part 332). For more information, see OPM’s DEOH, Chapter 4.
Employee Conflict of Interest. When an employee, a Subject Matter Expert (SME), an employee’s relative as defined by 5 U.S.C. §3110(a)(3), or a member of an employee’s household applies for a position that is being handled by the employee/SME’s office, neither the employee or SME may be involved in the assessment or certification process for that position. Each HR Center conducting DE activities under HHS-1 must include this guidance in its DE SOP. At a minimum, the SOP should state that an employee must provide written notice to their servicing HR Center when:
1. The employee or SME intends to apply for a position that is being handled by the DE unit/office in which they work, or
2. The employee knows that a relative or a member of his or her household intends to apply for such a position.
Veterans’ Preference Adjudication. HR Centers are responsible for ensuring veterans’ preference provisions are applied in accordance with 5 U.S.C. §§3309-3319, 5 CFR Part 211, the DEOH, and this Instruction. The DEOH, Chapter 4, is followed when reviewing incomplete applications from preference eligibles. OpDivs/StaffDivs must request additional information from applicants when there is conflicting documentation in their application package concerning their claimed veterans’ preference (Letter from the U.S. Office of Special Counsel (OSC) to HHS Office of General Counsel (OGC), 12/12/2017). For example, in cases where the applicant submits supporting evidence that shows they are entitled to the veterans’ preference, but also provides contradictory evidence that shows they are not entitled to the veterans’ preference they are claiming, HR Specialists must request additional information to ensure veterans’ preference is adjudicated properly.
Application for 10-Point Veteran Preference Eligibles. OPM issued a revised Standard Form 15 (SF-15), Application for 10-Point Veteran Preference, in October 2013. Signatures are no longer required; the form is now PDF-fillable; and veterans may file for preference if they have documentation showing they are honorably discharged or will be discharged under honorable conditions within 120 days after the date the certification is signed. The SF-15 must be collected prior to appointment.
Spousal Derived Preference Claims. OPM retains authority to determine spousal derived preference when the claim for preference is based on a claim of common law marriage (5 U.S.C. 2108(3)(D); 5 CFR 211.103). HR Centers submit requests to ASA/OHR at employmentpolicy@hhs.gov for review/concurrence and OPM approval.
Physical Qualification Waivers of Preference Eligibles. HR Centers will waive (5 U.S.C. §3312):
1. Requirement(s) concerning age, height, and weight in determining qualifications of a preference eligible, unless the requirements is/are essential to the performance of the duties of the position, and
2. Physical requirements if, in the opinion of the employing OpDiv/StaffDiv, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform the duties of the position.
3. If the HR Center determines that, based on a preponderance of evidence, a preference eligible under 5 U.S.C. §2108(3)(C) who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the HR Center must submit the request to ASA/OHR at employmentpolicy@hhs.gov for review/concurrence and OPM approval. ASA/OHR will subsequently notify OPM of the determination and, at the same time, the HR Center will notify the preference eligible of the reasons for the determination and of the right to respond to OPM within 15 days of the date of the notification. No correspondence is sent by the HR Center to the applicant until ASA/OHR concurrence is received. OPM will require evidence that notification was sent to the preference eligible’s last known address and will make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided. The OpDiv/StaffDiv cannot select any other person for the position prior to receiving OPM’s final determination.
Category Rating (5 U.S.C. §3319 and 5 CFR 337 Subpart C). Qualified applicants for permanent, term, and temporary positions in the competitive service are assessed using category rating procedures. Category rating is a method of evaluating candidates who meet eligibility and minimum qualification requirements for the position by assessing the applicants’ experience, education, and training and placing them into pre-defined “quality categories” rather than assigning individual numerical scores. For additional guidance, see the DEOH, Chapter 5.
1. Quality Categories: The HHS quality categories are Best Qualified, Well Qualified, and Qualified. Each category represents a grouping of candidates with similar levels of job-related knowledge, skills, abilities (KSAs) or competencies. Applicants are assessed and placed into categories based on their job-related competencies/KSAs and any applicable selective placement factors.
2. Category Rating Procedures: OpDiv/StaffDiv category rating procedures must be documented and adhere to the following requirements:
  1. Quality categories are Best Qualified, Well Qualified, and Qualified.
  2. Categories cannot include a “Not Qualified” category.
  3. Categories are defined in an OpDiv/StaffDiv’s DE SOP and/or recruitment case file through job analysis.¹ Definitions should be written to reflect the requirements of the position. The quality categories must be defined prior to announcing the job, and each category should have a clear definition that distinguishes it from the other categories.
  4. Quality categories may be defined using numerical scores (i.e., a range of scores to define each quality category). For example, scores of 95-100 to represent the “Best-Qualified” category, scores of 85-94 are “Well Qualified,” and scores of 70-84 are “Qualified.” Such rating criteria must adhere to the technical standards in the Uniform Guidelines (29 CFR Part 1607) and Job Analysis and Assessments in this Instruction to ensure it complies with merit staffing laws and regulations (DEOH, Chapter 5).
  5. Each quality category definition must be included in the vacancy announcement, along with a description of how veterans’ preference is applied under category rating procedures.
  6. A numerical ranking process, or the “rule of three,” does not apply to category rating. Veterans’ preference points are not applied in category rating.
3. Issuing Certificates and Selection:
  1. HHS DE certificates may be open for up 240 calendar days, with no extensions.
  2. Names of qualified candidates are listed in alphabetic order, with preference eligibles listed ahead of non-preference eligibles, within each quality category. Veterans’ preference applies to each category; however, points are not Qualified preference eligibles with a compensable service-connected disability of 10 percent or more (i.e., CP and CPS) are listed in the highest quality category, except for scientific and professional positions at General Schedule (GS)-9 level or higher.
  3. All candidates in the highest quality category are referred, with veteran preference eligibles listed ahead of non-veterans. If there are fewer than three (3) candidates in the highest category, the highest and second highest categories may be merged before a certificate is issued or a selection is made.
  4. Only preference eligible candidates in the highest quality category are referred when it is apparent that non-preference eligible candidates are not within reach for selection, or when there are a sufficient number of preference eligible candidates to consider to fill the vacant position(s).
  5. Order of selection:
    1. CTAP candidates;
    2. RPL candidates
    3. ICTAP candidates;
    4. Eligibles who lost consideration due to erroneous certification;
    5. Eligibles in the highest quality category (including CPS and CP veterans); then
    6. Eligibles in other quality categories, as needed.
  6. If there are only preference eligibles or only non-preference eligibles in the highest quality category, the hiring manager may select any eligible candidate in the highest quality category.
  7. Hiring managers may not select a non-preference eligible if there is a qualified preference eligible in the same category unless an approval to pass-over the preference eligible is obtained in accordance with the Pass-Overs and Objections of Preference Eligibles procedures below. If a request to pass-over a veteran has been submitted, selection(s) may be made once approval is received from either the OpDiv/StaffDiv HRD (for pass-overs and objections not requiring OPM approval) or OPM (for pass-overs and objections requiring OPM approval).
Pass-Overs and Objections of Preference Eligibles (5 U.S.C. §3318(c) and 5 CFR Part 339).
1. Pass-Overs and Objections Requiring OPM Approval:
  1. The following objection and pass-over requests require OPM approval before making selections:
    1. A pass-over of any preference eligible with a 30 percent or more compensable service-connected disability, in accordance with 5 USC §3318(c)(2) and the OPM Vet Guide;
    2. A pass-over of a preference eligible based on medical disqualification, in accordance with 5 CFR Part 339, specifically 5 CFR §§339.201 and 306; and
    3. Objections based on suitability for federal employment for positions in the competitive service (and excepted service, if the excepted service authority or position authorizes non-competitive conversion to the competitive service), for the reasons specified under 5 CFR §731.101.
  2. The following supporting documentation must be approved and/or submitted by the HRD to ASA/OHR at employmentpolicy@hhs.gov for review/concurrence and OPM approval before making any selections:
    1. SF-62, Agency Request to Pass-over a Preference Eligible or Object to an Eligible, signed by the HRD;
    2. Resume/Application Package, including documents supporting veterans’ preference claim;
    3. Copy of Position Description;
    4. Copy of Vacancy Announcement;
    5. Certificate of Eligibles; and
    6. An explanation of the reason sufficient to sustain an objection/pass-over.
  3. No correspondence is sent to a 30 percent or more compensable disabled applicant until ASA/OHR concurrence is received. Once ASA/OHR concurrence is received, the HR Center sends a notice to the CPS candidate and submits a copy of the sent notice to employmentpolicy@hhs.gov. Information that must be included in notice(s) is outlined in the DEOH, Chapter 6.
  4. Only after OPM has approved the pass-over of the preference eligible may the 30 percent or more compensable disabled veteran be passed over and another applicant selected.
2. Pass-Overs and Objections Not Requiring OPM Approval:
  1. OpDiv/StaffDiv HRDs may approve or deny objection or pass-over requests of preference eligibles with less than 30 percent compensable service-connected disability, or an applicant with derived preference, for competitive service positions within their organization. This authority may not be redelegated below the OpDiv/StaffDiv HRD level.
  2. A copy of the HRD’s approval must be sent to ASA/OHR at employmentpolicy@hhs.gov within 14 calendar days of the date of approval and include the same information as in Q.1.b. immediately above.
Direct Hire Authority (5 CFR 337, Subpart B, OPM’s DEOH Chapter 2, and DHA FAQs).
1. A Direct Hire Authority (DHA) (5 CFR Part 337, Subpart B) permits an agency with delegated examining authority to hire, after public notice, any qualified applicant without rating and ranking and the application of veterans’ preference to fill competitive service positions at GS-15 and below.
2. Executive agencies with delegated examining authority, such as HHS, may use a government-wide DHA. (For available government-wide DHAs, see gov/DHA.) OPM may also grant an agency-specific DHA to address a critical hiring need or a severe shortage of candidates. (For instructions on how to request an agency-specific DHA, see T.13. below).
3. Only the specific position title(s), occupational series, grade(s), and geographical location(s) approved by OPM are authorized to be filled. Unofficial/Organizational position titles may be appropriate/helpful for internal OpDiv/StaffDiv use or for recruiting purposes; however, the OPM-approved position title must be used on all official documents (e.g., personnel actions, position descriptions, etc.)
4. Candidates who apply to the public notice may be considered for the position. Applicants are assessed/selected in the order in which applications were received. Qualified candidates with veterans’ preference are assessed/selected the same as any qualified non-preference eligible candidate (i.e., veterans’ preference does not apply to a DHA).
5. Priority selection under 5 CFR Part 330 must first be given to qualified CTAP/ICTAP candidates and RPL eligibles, in accordance with HHS Instruction 330-2, Priority Placement Programs.²
6. HHS Direct Hire Authority certificates may be open for up to 240 calendar days, with no extensions.
7. Order of selection:
  1. CTAP candidates;
  2. RPL candidates
  3. ICTAP candidates;
  4. Eligibles who lost consideration due to erroneous certification; then
  5. Qualified candidates who applied to the DHA public notice.
8. OpDivs/StaffDivs must ensure selectee(s) meet all requirements of the position, including citizenship, OPM qualification requirements (experience, education and license/certification), and security and suitability requirements at the time of appointment.
9. OpDivs/StaffDivs may appoint an individual under DHA after the expiration date of the DHA only in cases where a written job offer was sent to a candidate on or before the expiration date of the DHA, unless OPM’s DHA approval states otherwise.
10. The movement restrictions under 5 CFR §330.502 apply to employees appointed to a non-temporary appointment.
11. Two (2) authority codes must be used when processing DHA personnel actions, in accordance with the DEOH and OPM Guide to Processing Personnel Actions, Chapter 9, Career and Career-Conditional Appointments.
12. ASA/OHR, on behalf of OPM, may request information from OpDivs/StaffDivs on their use of direct hire authorities (5 CFR §337.206(c)).
13. To request OPM approval of an agency-specific DHA, a request approved by the HRD must be submitted to employmentpolicy@hhs.gov and contain the following information:
  1. Position title(s), occupational series, grade level(s), and geographic locations(s) covered:
  2. Number of position(s) for each title/series/grade/duty location;
  3. Type of DHA requested (severe shortage of candidates or critical hiring need);
  4. Proposed duration of the DHA and an explanation why this period is needed;
  5. Evidence described in 5 CFR §§337.204 or 337.205 to support a DHA based on a severe shortage of candidates or critical hiring need. Explain how the evidence establishes a severe shortage of candidates or critical hiring need, as defined under 5 CFR 337.202 for the positions requested; and
  6. Identify an HR Center point of contact for questions and requests for further information.
14. For additional guidance, including DHA FAQs and request templates, see gov/DHA and the DEOH, Chapter 2.
Rating Appeals. HR Centers must develop internal procedures for applicants to request an appeal or reconsideration of their rating(s), in accordance with the DEOH, Chapter 5:
1. Applicant Responsibilities:
  1. The applicant’s request must be made in writing and indicate why the applicant believes the original decision is inaccurate.
  2. The applicant may submit a second appeal to a designated official within the OpDiv/StaffDiv, after receipt of the HR Center’s decision. The result of the second appeal is final. The applicant may not appeal to OPM.
2. OpDiv/StaffDiv Responsibilities:
  1. Internal appeal procedures must be available to applicants who wish to challenge an assigned rating and applicants are advised the results of the appeal could result in a higher, lower, or same score.
  2. The HR Center that made the original rating decision conducts the review.
  3. A DE certified staff member other than the person who made the original decision must conduct the review.
  4. The HR Center replies in writing to the applicant’s request with a full explanation of the reasons for the decision, without compromising the rating schedule.
  5. Follow the guidance in the DEOH, Chapter 5, and this Instruction when the review results in rating changes or erroneous certification (and see U. immediately below, if applicable).
Auditing Certificates. To ensure compliance with legal and regulatory merit staffing procedures, certificates must be audited prior to the selectee’s entrance-on-duty date by a DE-certified HR Specialist. In cases where the vacancy announcement has been canceled but a certificate was issued, the certificate must still be audited. Certificates must be annotated to reflect selections, and declinations or any failed to reply actions. Acceptable documentation from the hiring manager can be in the form of a signature on the actual certificate; an email; an electronic certificate; or a manager’s statement on the system-generated email to the servicing HR Specialist. All declinations and withdrawals from consideration must be documented in the recruitment case file or in USAStaffing. For instructions and examples on auditing a certificate, see the DEOH, Chapter 6.
Erroneous Certification and Priority Consideration.
1. In the event an HR Center discovers an error that resulted in a selection in violation of the selection rules, corrective action must be taken to resolve the error. The instructions in the DEOH, Chapter 6, are followed to determine if applicants lost consideration and to correct (regularize) any erroneous appointments. The HR Center who made the error must give priority consideration for future vacancies within the employing OpDiv/StaffDiv to all applicants who lost consideration due to an illegal selection.
2. When a violation of law or an illegal appointment is identified, HR Centers must immediately notify the ASA/OHR at employmentpolicy@hhs.gov.
3. Variation request(s) for OPM approval to provide service credit for the time incumbent(s) were on an illegal appointment, or to retain incumbent(s) appointed erroneously, must be approved and/or submitted by the HRD to at employmentpolicy@hhs.gov.
  1. OpDiv/StaffDiv HR Centers must first attempt to correct the erroneous appointment by placing the employee on a legal appointment (e.g., by determining if the employee could have been properly appointed at the time when the error was made via a previously advertised position; posting a JOA then selecting the incumbent legally; or a valid selection via a noncompetitive appointment authority, etc.).
  2. The following information must be included in a variation request:
    1. A memo to the CHCO signed by the HRD requesting a variation (a detailed explanation of the case, which includes how the employee was selected for the improper appointment; how the erroneous appointment was discovered; and the steps to place the employee on a proper appointment);
    2. Job Opportunity Announcement (Initial Appointment & Regularized Appointment);
    3. PD (Initial Appointment & Regularized Appointment);
    4. Resume (Initial Appointment & Regularized Appointment);
    5. Certificate of Eligibles (Initial Appointment & Regularized Appointment); and
    6. SF-50 (Initial Appointment & Regularized Appointment)
Appointment and Other Effective Dates. Effective dates are established consistent with OPM’s GPPA, Chapter 3, Subchapter 4. When an employee enters on duty on a Monday, the first workday of the pay period, the appointment will be effective on Sunday, the beginning date of the pay period. In instances where Monday is a legal holiday and the employee enters on duty on Tuesday, the appointment will be effective on Tuesday, the first actual workday of the pay period. For employees who transfer from another Federal agency without a break in service, the appointment will be effective on Sunday, the beginning of the pay period when Monday is a legal holiday, except as otherwise negotiated between the losing and gaining organization. The effective date of all other new appointments will be made effective on the date the employee enters on duty, i.e., on other days during the pay period as requested by the employing office. HR Center questions should be submitted via ServiceNow to ASA/OHR HR Systems who manages timekeeping and payroll.
Citizenship. Only U.S. citizens or U.S. nationals³ are eligible for competitive service positions, except in rare cases when approved by OPM (Executive Order 11935 and 5 CFR §7.3). HRD requests to hire a non-U.S. citizen for a competitive service position must be submitted to employmentpolicy@hhs.gov for OPM approval prior to the effective date of the action. Requests must contain concurrence by the OGC that the appointment and payment of compensation are not prohibited by statute (5 CFR 338.101(b)). Requests must additionally demonstrate all requirements in 5 CFR 338.101 and 316.601 are met, including evidence the OpDiv/StaffDiv has been unable to fill the position through the competitive hiring process (5 CFR 316.601(a)(1)). Questions concerning the legal requirements on hiring and paying non-U.S. citizens should be directed to the OGC to ensure the proposed action and any related payments are legally supportable. For more information, see the OPM DEOH, Chapter 4.

1104-1-70 ADVERSE ACTIONS, MOVEMENTS, AND APPEALS

Competitive service employees who meet the definition of ‘employee’ under 5 S.C. §7511are entitled due process rights, advance written notice, an opportunity to respond to a proposed adverse action, and appeal rights to the Merit Systems Protection Board. Servicing Employee Relations staff must be consulted when dealing with unacceptable performance and/or employee misconduct to ensure actions are in compliance with law, regulations, HHS policy, and applicable collective bargaining agreement(s).
The requirements in 5 CFR 302, Subpart F, including required approvals, employee notice, retention of civil service protections, and right of appeal to the MSPB apply when an agency moves an employee or position from the competitive to the excepted service, due to an E.O., law, or regulation. Employees retain competitive status in accordance with 5 CFR 212.401. Servicing employee relations staff must be consulted prior to any such movements to ensure due process requirements are met, in addition to the required approvals specified in 5 CFR 302, Subpart F.

1104-1-80 DOCUMENTATION AND ACCOUNTABILITY

Recruitment case files, including all documentation sufficient for third-party review, must be retained for a total of three (3) full years (DEOH, Records Retention and Disposition Schedule, Appendix C).
Records involved in litigation that are subject to a litigation hold must be preserved until an official litigation hold lift is received from OPM, Department of Justice, courts, the OGC, etc. that the matter has been fully litigated, or resolved, and closed.
ASA/OHR or OPM will conduct annual accountability reviews to ensure compliance with this Instruction, HHS and OPM policy and guidance, and all applicable federal laws and regulations. Audits will be conducted by DE certified staff external to the OpDiv/StaffDiv, in accordance with the requirements described in HHS-1 and the DEOH.

Endnotes

¹ HHS Well Qualified definition for CTAP and ICTAP candidates is in HHS Instruction 330-2-, Priority Placement Programs and must be used in accordance with 5 CFR §§330.104, 330.605(a) and 330.606.

² HHS Well Qualified definition for CTAP and ICTAP candidates is in HHS Instruction 330-2-, Priority Placement Programs and must be used in accordance with 5 CFR §§330.104, 330.605(a) and 330.606.

³ A U.S. national is a person born in American Samoa or Swains Island.